46 Fed. Reg. 18026 (March 23, 1981)

As amended

COUNCIL ON ENVIRONMENTAL QUALITY Executive Office of the President

Memorandum to Agencies:

Forty Most Asked Questions Concerning

CEQ's National Environmental Policy Act Regulations

SUMMARY: The Council on Environmental Quality, as part of its oversight of

implementation of the National Environmental Policy Act, held meetings in the ten Federal

regions with Federal, State, and local officials to discuss administration of the implementing

regulations. The forty most asked questions were compiled in a memorandum to agencies for

the information of relevant officials. In order efficiently to respond to public inquiries this

memorandum is reprinted in this issue of the Federal Register.

Ref: 40 CFR Parts 1500 - 1508 (1987).

FOR FURTHER INFORMATION CONTACT:

General Counsel,

Council on Environmental Quality,

722 Jackson Place NW,

Washington, D.C. 20006;

(202)-395-5754.

March 16, 1981

MEMORANDUM FOR FEDERAL NEPA LIAISONS, FEDERAL, STATE,

AND LOCAL OFFICIALS AND OTHER PERSONS INVOLVED IN THE

NEPA PROCESS Subject: Questions and Answers About the NEPA Regulations

During June and July of 1980 the Council on Environmental Quality, with the assistance and

cooperation of EPA's EIS Coordinators from the ten EPA regions, held one-day meetings with

federal, state and local officials in the ten EPA regional offices around the country. In addition,

on July 10, 1980, CEQ conducted a similar meeting for the Washington, D.C. NEPA liaisons

and persons involved in the NEPA process. At these meetings CEQ discussed (a) the results of

its 1980 review of Draft EISs issued since the July 30, 1979 effective date of the NEPA

regulations, (b) agency compliance with the Record of Decision requirements in Section 1505

of the NEPA regulations, and (c) CEQ's preliminary findings on how the scoping process is

working. Participants at these meetings received copies of materials prepared by CEQ

summarizing its oversight and findings.

These meetings also provided NEPA liaisons and other participants with an opportunity to ask

questions about NEPA and the practical application of the NEPA regulations. A number of

these questions were answered by CEQ representatives at the regional meetings. In response to

the many requests from the agencies and other participants, CEQ has compiled forty of the

most important or most frequently asked questions and their answers and reduced them to

writing. The answers were prepared by the General Counsel of CEQ in consultation with the

Office of Federal Activities of EPA. These answers, of course, do not impose any additional

requirements beyond those of the NEPA regulations. This document does not represent new

guidance under the NEPA regulations, but rather makes generally available to concerned

agencies and private individuals the answers which CEQ has already given at the 1980 regional

meetings. The answers also reflect the advice which the Council has given over the past two

years to aid agency staff and consultants in their day-to-day application of NEPA and the

regulations.

CEQ has also received numerous inquiries regarding the scoping process. CEQ hopes to issue

written guidance on scoping later this year on the basis of its special study of scoping, which

is nearing completion.

NICHOLAS C. YOST

General Counsel

Table of Contents

1. Range of Alternatives.

2. Alternatives Outside the Capability of Applicant or Jurisdiction of Agency.

3. No-Action Alternative.

4. Agency's Preferred Alternative.

5. Proposed Action v. Preferred Alternative.

6. Environmentally Preferable Alternative.

7. Difference Between Sections of EIS on Alternatives and Environmental Consequences.

8. Early Application of NEPA.

9. Applicant Who Needs Other Permits.

10. Limitations on Action During 30-Day Review Period for Final EIS.

11. Limitations on Actions by an Applicant During EIS Process.

12. Effective Date and Enforceability of the Regulations.

13. Use of Scoping Before Notice of Intent to Prepare EIS.

14. Rights and Responsibilities of Lead and Cooperating Agencies.

15. Commenting Responsibilities of EPA.

16. Third Party Contracts.

17. Disclosure Statement to Avoid Conflict of Interest.

18. Uncertainties About Indirect Effects of A Proposal.

19. Mitigation Measures.

20. Worst Case Analysis. [Withdrawn.]

21. Combining Environmental and Planning Documents.

22. State and Federal Agencies as Joint Lead Agencies.

23. Conflicts of Federal Proposal With Land Use Plans, Policies or Controls.

24. Environmental Impact Statements on Policies, Plans or Programs.

25. Appendices and Incorporation by Reference.

26. Index and Keyword Index in EISs.

27. List of Preparers.

28. Advance or Xerox Copies of EIS.

29. Responses to Comments.

30. Adoption of EISs.

31. Application of Regulations to Independent Regulatory Agencies.

32. Supplements to Old EISs.

33. Referrals.

34. Records of Decision.

35. Time Required for the NEPA Process.

36. Environmental Assessments (EA).

37. Findings of No Significant Impact (FONSI).

38. Public Availability of EAs v. FONSIs.

39. Mitigation Measures Imposed in EAs and FONSIs.

40. Propriety of Issuing EA When Mitigation Reduces Impacts.

END NOTES

1a. Range of Alternatives. What is meant by "range of alternatives" as referred to in Sec.

1505.1(e)?

A. The phrase "range of alternatives" refers to the alternatives discussed in environmental

documents. It includes all reasonable alternatives, which must be rigorously explored and

objectively evaluated, as well as those other alternatives, which are eliminated from detailed

study with a brief discussion of the reasons for eliminating them. Section 1502.14. A

decisionmaker must not consider alternatives beyond the range of alternatives discussed in the

relevant environmental documents. Moreover, a decisionmaker must, in fact, consider all the

alternatives discussed in an EIS. Section 1505.1(e).

1b. How many alternatives have to be discussed when there is an infinite number of

possible alternatives?

A. For some proposals there may exist a very large or even an infinite number of possible

reasonable alternatives. For example, a proposal to designate wilderness areas within a

National Forest could be said to involve an infinite number of alternatives from 0 to 100

percent of the forest. When there are potentially a very large number of alternatives, only a

reasonable number of examples, covering the full spectrum of alternatives, must be analyzed

and compared in the EIS. An appropriate series of alternatives might include dedicating 0, 10,

30, 50, 70, 90, or 100 percent of the Forest to wilderness. What constitutes a reasonable range

of alternatives depends on the nature of the proposal and the facts in each case.

2a. Alternatives Outside the Capability of Applicant or Jurisdiction of Agency. If an EIS is

prepared in connection with an application for a permit or other federal approval, must the EIS

rigorously analyze and discuss alternatives that are outside the capability of the applicant or can

it be limited to reasonable alternatives that can be carried out by the applicant?

A. Section 1502.14 requires the EIS to examine all reasonable alternatives to the proposal. In

determining the scope of alternatives to be considered, the emphasis is on what is "reasonable"

rather than on whether the proponent or applicant likes or is itself capable of carrying out a

particular alternative. Reasonable alternatives include those that are practical

or feasible from the technical and economic standpoint and using common sense, rather than

simply desirable from the standpoint of the applicant.

2b. Must the EIS analyze alternatives outside the jurisdiction or capability of the agency or

beyond what Congress has authorized?

A. An alternative that is outside the legal jurisdiction of the lead agency must still be analyzed

in the EIS if it is reasonable. A potential conflict with local or federal law does not necessarily

render an alternative unreasonable, although such conflicts must be considered. Section

1506.2(d). Alternatives that are outside the scope of what Congress has approved or funded

must still be evaluated in the EIS if they are reasonable, because the EIS may serve as the basis

for modifying the Congressional approval or funding in light of NEPA's goals and policies.

Section 1500.1(a).

3. No-Action Alternative. What does the "no action" alternative include? If an agency is

under a court order or legislative command to act, must the EIS address the "no action"

alternative?

A. Section 1502.14(d) requires the alternatives analysis in the EIS to "include the alternative of

no action." There are two distinct interpretations of "no action" that must be considered,

depending on the nature of the proposal being evaluated. The first situation might involve an

action such as updating a land management plan where ongoing programs initiated under

existing legislation and regulations will continue, even as new plans are developed. In these

cases "no action" is "no change" from current management direction or level of management

intensity. To construct an alternative that is based on no management at all would be a useless

academic exercise. Therefore, the "no action" alternative may be thought of in terms of

continuing with the present course of action until that action is changed. Consequently,

projected impacts of alternative management schemes would be compared in the EIS to those

impacts projected for the existing plan. In this case, alternatives would include management

plans of both greater and lesser intensity, especially greater and lesser levels of resource

development.

The second interpretation of "no action" is illustrated in instances involving federal decisions

on proposals for projects. "No action" in such cases would mean the proposed activity would

not take place, and the resulting environmental effects from taking no action would be

compared with the effects of permitting the proposed activity or an alternative activity to go

forward.

Where a choice of "no action" by the agency would result in predictable actions by others, this

consequence of the "no action" alternative should be included in the analysis. For example, if

denial of permission to build a railroad to a facility would lead to construction of a road and

increased truck traffic, the EIS should analyze this consequence of the "no action" alternative.

In light of the above, it is difficult to think of a situation where it would not be appropriate to

address a "no action" alternative. Accordingly, the regulations require the analysis of the no

action alternative even if the agency is under a court order or legislative command to act. This

analysis provides a benchmark, enabling decisionmakers to compare the magnitude of

environmental effects of the action alternatives. It is also an example of a reasonable

alternative outside the jurisdiction of the agency which must be analyzed. Section

1502.14(c). See Question 2 above. Inclusion of such an analysis in the EIS is necessary to

inform the Congress, the public, and the President as intended by NEPA. Section 1500.1(a).

4a. Agency's Preferred Alternative. What is the "agency's preferred alternative"?

A. The "agency's preferred alternative" is the alternative which the agency believes would

fulfill its statutory mission and responsibilities, giving consideration to economic,

environmental, technical and other factors. The concept of the "agency's preferred alternative"

is different from the "environmentally preferable alternative," although in some cases one

alternative may be both. See Question 6 below. It is identified so that agencies and the public

can understand the lead agency's orientation.

4b. Does the "preferred alternative" have to be identified in the Draft EIS and the Final

EIS or just in the Final EIS?

A. Section 1502.14(e) requires the section of the EIS on alternatives to "identify the agency's

preferred alternative if one or more exists, in the draft statement, and identify such alternative

in the final statement . . ." This means that if the agency has a preferred alternative at the Draft

EIS stage, that alternative must be labeled or identified as such in the Draft EIS. If the

responsible federal official in fact has no preferred alternative at the Draft EIS stage, a preferred

alternative need not be identified there. By the time the Final EIS is filed, Section 1502.14(e)

presumes the existence of a preferred alternative and requires its identification in the Final EIS

"unless another law prohibits the expression of such a preference."

4c. Who recommends or determines the "preferred alternative?"

A. The lead agency's official with line responsibility for preparing the EIS and assuring its

adequacy is responsible for identifying the agency's preferred alternative(s). The NEPA

regulations do not dictate which official in an agency shall be responsible for preparation of

EISs, but agencies can identify this official in their implementing procedures, pursuant to

Section 1507.3.

Even though the agency's preferred alternative is identified by the EIS preparer in the EIS,

the statement must be objectively prepared and not slanted to support the choice of the

agency's preferred alternative over the other reasonable and feasible alternatives.

5a. Proposed Action v. Preferred Alternative. Is the "proposed action" the same thing as

the "preferred alternative"?

A. The "proposed action" may be, but is not necessarily, the agency's "preferred alternative."

The proposed action may be a proposal in its initial form before undergoing analysis in the EIS

process. If the proposed action is [46 FR 18028] internally generated, such as preparing a land

management plan, the proposed action might end up as the agency's preferred alternative. On

the other hand the proposed action may be granting an application to a non- federal entity for a

permit. The agency may or may not have a "preferred alternative" at the Draft EIS stage (see

Question 4 above). In that case the agency may decide at the Final EIS stage, on the basis of the

Draft EIS and the public and agency comments, that an alternative other than the proposed

action is the agency's "preferred alternative."

5b. Is the analysis of the "proposed action" in an EIS to be treated differently from the

analysis of alternatives?

A. The degree of analysis devoted to each alternative in the EIS is to be substantially similar to

that devoted to the "proposed action." Section 1502.14 is titled "Alternatives including the

proposed action" to reflect such comparable treatment. Section 1502.14(b) specifically requires

"substantial treatment" in the EIS of each alternative including the proposed action. This

regulation does not dictate an amount of information to be provided, but rather, prescribes a

level of treatment, which may in turn require varying amounts of information, to enable a

reviewer to evaluate and compare alternatives.

6a. Environmentally Preferable Alternative. What is the meaning of the term

"environmentally preferable alternative" as used in the regulations with reference to Records

of Decision? How is the term "environment" used in the phrase?

A. Section 1505.2(b) requires that, in cases where an EIS has been prepared, the Record of

Decision (ROD) must identify all alternatives that were considered, ". . . specifying the

alternative or alternatives which were considered to be environmentally preferable." The

environmentally preferable alternative is the alternative that will promote the national

environmental policy as expressed in NEPA's Section 101. Ordinarily, this means the

alternative that causes the least damage to the biological and physical environment; it also

means the alternative which best protects, preserves, and enhances historic, cultural, and

natural resources.

The Council recognizes that the identification of the environmentally preferable alternative

may involve difficult judgments, particularly when one environmental value must be balanced

against another. The public and other agencies reviewing a Draft EIS can assist the lead

agency to develop and determine environmentally preferable alternatives by providing their

views in comments on the Draft EIS. Through the identification of the environmentally

preferable alternative, the decisionmaker is clearly faced with a choice between that

alternative and others, and must consider whether the decision accords with the

Congressionally declared policies of the Act.

6b. Who recommends or determines what is environmentally preferable?

A. The agency EIS staff is encouraged to make recommendations of the environmentally

preferable alternative(s) during EIS preparation. In any event the lead agency official

responsible for the EIS is encouraged to identify the environmentally preferable alternative(s)

in the EIS. In all cases, commentors from other agencies and the public are also encouraged to

address this question. The agency must identify the environmentally preferable alternative in

the ROD.

7. Difference Between Sections of EIS on Alternatives and Environmental Consequences.

What is the difference between the sections in the EIS on "alternatives" and "environmental

consequences"? How do you avoid duplicating the discussion of alternatives in preparing

these two sections?

A. The "alternatives" section is the heart of the EIS. This section rigorously explores and

objectively evaluates all reasonable alternatives including the proposed action. Section

1502.14. It should include relevant comparisons on environmental and other grounds. The

"environmental consequences" section of the EIS discusses the specific environmental

impacts or effects of each of the alternatives including the proposed action. Section

1502.16. In order to avoid duplication between these two sections, most of the

"alternatives" section should be devoted to describing and comparing the alternatives.

Discussion of the environmental impacts of these alternatives should be limited to a

concise descriptive summary of such impacts in a comparative form, including charts or

tables, thus sharply defining the issues and providing a clear basis for choice among

options. Section 1502.14. The "environmental consequences" section should be devoted

largely to a scientific analysis of the direct and indirect environmental effects of the

proposed action and of each of the alternatives. It forms the analytic basis for the concise

comparison in the "alternatives" section.

8. Early Application of NEPA. Section 1501.2(d) of the NEPA regulations requires agencies to

provide for the early application of NEPA to cases where actions are planned by private

applicants or non-Federal entities and are, at some stage, subject to federal approval of

permits, loans, loan guarantees, insurance or other actions. What must and can agencies do to

apply NEPA early in these cases?

A. Section 1501.2(d) requires federal agencies to take steps toward ensuring that private

parties and state and local entities initiate environmental studies as soon as federal

involvement in their proposals can be foreseen. This section is intended to ensure that

environmental factors are considered at an early stage in the planning process and to avoid

the situation where the applicant for a federal permit or approval has completed planning and

eliminated all alternatives to the proposed action by the time the EIS process commences or

before the EIS process has been completed.

Through early consultation, business applicants and approving agencies may gain better

appreciation of each other's needs and foster a decisionmaking process which avoids later

unexpected confrontations.

Federal agencies are required by Section 1507.3(b) to develop procedures to carry out Section

1501.2(d). The procedures should include an "outreach program", such as a means for

prospective applicants to conduct pre-application consultations with the lead and cooperating

agencies. Applicants need to find out, in advance of project planning, what environmental

studies or other information will be required, and what mitigation requirements are likely, in

connection with the later federal NEPA process. Agencies should designate staff to advise

potential applicants of the agency's NEPA information requirements and should publicize their

pre-application procedures and information requirements in newsletters or other media used by

potential applicants.

Complementing Section 1501.2(d), Section 1506.5(a) requires agencies to assist applicants

by outlining the types of information required in those cases where the agency requires the

applicant to submit environmental data for possible use by the agency in preparing an EIS.

Section 1506.5(b) allows agencies to authorize preparation of environmental assessments by

applicants. Thus, the procedures should also include a means for anticipating and utilizing

applicants' environmental studies or "early corporate environmental assessments" to fulfill

some of the federal agency's NEPA obligations. However, in such cases the agency must still

evaluate independently the environmental issues [46 FR 18029] and take responsibility for

the environmental assessment.

These provisions are intended to encourage and enable private and other non-federal entities to

build environmental considerations into their own planning processes in a way that facilitates

the application of NEPA and avoids delay.

9. Applicant Who Needs Other Permits. To what extent must an agency inquire into

whether an applicant for a federal permit, funding or other approval of a proposal will also

need approval from another agency for the same proposal or some other related aspect of it?

A. Agencies must integrate the NEPA process into other planning at the earliest possible time

to insure that planning and decisions reflect environmental values, to avoid delays later in the

process, and to head off potential conflicts. Specifically, the agency must "provide for cases

where actions are planned by . . . applicants," so that designated staff are available to advise

potential applicants of studies or other information that will foreseeably be required for the later

federal action; the agency shall consult with the applicant if the agency foresees its own

involvement in the proposal; and it shall insure that the NEPA process commences at the

earliest possible time. Section 1501.2(d). (See Question 8.)

The regulations emphasize agency cooperation early in the NEPA process. Section 1501.6.

Section 1501.7 on "scoping" also provides that all affected Federal agencies are to be invited to

participate in scoping the environmental issues and to identify the various environmental

review and consultation requirements that may apply to the proposed action. Further, Section

1502.25(b) requires that the draft EIS list all the federal permits, licenses and other

entitlements that are needed to implement the proposal.

These provisions create an affirmative obligation on federal agencies to inquire early, and to

the maximum degree possible, to ascertain whether an applicant is or will be seeking other

federal assistance or approval, or whether the applicant is waiting until a proposal has been

substantially developed before requesting federal aid or approval.

Thus, a federal agency receiving a request for approval or assistance should determine whether

the applicant has filed separate requests for federal approval or assistance with other federal

agencies. Other federal agencies that are likely to become involved should then be contacted,

and the NEPA process coordinated, to insure an early and comprehensive analysis of the direct

and indirect effects of the proposal and any related actions. The agency should inform the

applicant that action on its application may be delayed unless it submits all other federal

applications (where feasible to do so), so that all the relevant agencies can work together on

the scoping process and preparation of the EIS.

10a. Limitations on Action During 30-Day Review Period for Final EIS. What actions by

agencies and/or applicants are allowed during EIS preparation and during the 30-day review

period after publication of a final EIS?

A. No federal decision on the proposed action shall be made or recorded until at least 30 days

after the publication by EPA of notice that the particular EIS has been filed with EPA. Sections

1505.2 and 1506.10. Section 1505.2 requires this decision to be stated in a public Record of

Decision.

Until the agency issues its Record of Decision, no action by an agency or an applicant

concerning the proposal shall be taken which would have an adverse environmental impact

or limit the choice of reasonable alternatives. Section 1506.1(a). But this does not preclude

preliminary planning or design work which is needed to support an application for permits or

assistance. Section 1506.1(d).

When the impact statement in question is a program EIS, no major action concerning the

program may be taken which may significantly affect the quality of the human environment,

unless the particular action is justified independently of the program, is accompanied by its

own adequate environmental impact statement and will not prejudice the ultimate decision on

the program. Section 1506.1(c).

10b. Do these limitations on action (described in Question 10a) apply to state or local

agencies that have statutorily delegated responsibility for preparation of environmental

documents required by NEPA, for example, under the HUD Block Grant program?

A. Yes, these limitations do apply, without any variation from their application to federal

agencies.

11. Limitations on Actions by an Applicant During EIS Process. What actions must a lead

agency take during the NEPA process when it becomes aware that a non-federal applicant is

about to take an action within the agency's jurisdiction that would either have an adverse

environmental impact or limit the choice of reasonable alternatives (e.g., prematurely commit

money or other resources towards the completion of the proposal)?

A. The federal agency must notify the applicant that the agency will take strong affirmative

steps to insure that the objectives and procedures of NEPA are fulfilled. Section 1506.1(b).

These steps could include seeking injunctive measures under NEPA, or the use of sanctions

available under either the agency's permitting authority or statutes setting forth the agency's

statutory mission. For example, the agency might advise an applicant that if it takes such

action the agency will not process its application.

12a. Effective Date and Enforceability of the Regulations. What actions are subject to the

Council's new regulations, and what actions are grandfathered under the old guidelines?

A. The effective date of the Council's regulations was July 30, 1979 (except for certain HUD

programs under the Housing and Community Development Act, 42 U.S.C. 5304(h), and

certain state highway programs that qualify under Section 102(2)(D) of NEPA for which the

regulations became effective on November 30, 1979). All the provisions of the regulations are

binding as of that date, including those covering decisionmaking, public participation,

referrals, limitations on actions, EIS supplements, etc. For example, a Record of Decision

would be prepared even for decisions where the draft EIS was filed before July 30, 1979.

But in determining whether or not the new regulations apply to the preparation of a particular

environmental document, the relevant factor is the date of filing of the draft of that document.

Thus, the new regulations do not require the redrafting of an EIS or supplement if the draft EIS

or supplement was filed before July 30, 1979. However, a supplement prepared after the

effective date of the regulations for an EIS issued in final before the effective date of the

regulations would be controlled by the regulations.

Even though agencies are not required to apply the regulations to an EIS or other document

for which the draft was filed prior to July 30, 1979, the regulations encourage agencies to

follow the regulations "to the fullest extent practicable," i.e., if it is feasible to do so, in

preparing the final document. Section 1506.12(a).

12b. Are projects authorized by Congress before the effective date of the Council's

regulations grandfathered?

A. No. The date of Congressional authorization for a project is not determinative of whether

the Council's regulations or former Guidelines apply to the particular proposal. No incomplete

projects or proposals of any kind are grandfathered in whole or in part. Only certain

environmental documents, for which the draft was issued before the effective date of the

regulations, are grandfathered and [46 FR 18030] subject to the Council's former Guidelines.

12c. Can a violation of the regulations give rise to a cause of action?

A. While a trivial violation of the regulations would not give rise to an independent cause of

action, such a cause of action would arise from a substantial violation of the regulations.

Section 1500.3.

13. Use of Scoping Before Notice of Intent to Prepare EIS. Can the scoping process be

used in connection with preparation of an environmental assessment, i.e., before both the

decision to proceed with an EIS and publication of a notice of intent?

A. Yes. Scoping can be a useful tool for discovering alternatives to a proposal, or significant

impacts that may have been overlooked. In cases where an environmental assessment is being

prepared to help an agency decide whether to prepare an EIS, useful information might result

from early participation by other agencies and the public in a scoping process.

The regulations state that the scoping process is to be preceded by a Notice of Intent (NOI) to

prepare an EIS. But that is only the minimum requirement. Scoping may be initiated earlier, as

long as there is appropriate public notice and enough information available on the proposal so

that the public and relevant agencies can participate effectively.

However, scoping that is done before the assessment, and in aid of its preparation, cannot

substitute for the normal scoping process after publication of the NOI, unless the earlier

public notice stated clearly that this possibility was under consideration, and the NOI

expressly provides that written comments on the scope of alternatives and impacts will still

be considered.

14a. Rights and Responsibilities of Lead and Cooperating Agencies. What are the respective

rights and responsibilities of lead and cooperating agencies? What letters and memoranda must

be prepared?

A. After a lead agency has been designated (Sec. 1501.5), that agency has the responsibility to

solicit cooperation from other federal agencies that have jurisdiction by law or special expertise

on any environmental issue that should be addressed in the EIS being prepared. Where

appropriate, the lead agency should seek the cooperation of state or local agencies of similar

qualifications. When the proposal may affect an Indian reservation, the agency should consult

with the Indian tribe. Section 1508.5. The request for cooperation should come at the earliest

possible time in the NEPA process.

After discussions with the candidate cooperating agencies, the lead agency and the cooperating

agencies are to determine by letter or by memorandum which agencies will undertake

cooperating responsibilities. To the extent possible at this stage, responsibilities for specific

issues should be assigned. The allocation of responsibilities will be completed during scoping.

Section 1501.7(a)(4).

Cooperating agencies must assume responsibility for the development of information and the

preparation of environmental analyses at the request of the lead agency. Section 1501.6(b)(3).

Cooperating agencies are now required by Section 1501.6 to devote staff resources that were

normally primarily used to critique or comment on the Draft EIS after its preparation, much

earlier in the NEPA process -- primarily at the scoping and Draft EIS preparation stages. If a

cooperating agency determines that its resource limitations preclude any involvement, or the

degree of involvement (amount of work) requested by the lead agency, it must so inform the

lead agency in writing and submit a copy of this correspondence to the Council. Section

1501.6(c).

In other words, the potential cooperating agency must decide early if it is able to devote any of

its resources to a particular proposal. For this reason the regulation states that an agency may

reply to a request for cooperation that "other program commitments preclude any involvement

or the degree of involvement requested in the action that is the subject of the environmental

impact statement." (Emphasis added). The regulation refers to the "action," rather than to the

EIS, to clarify that the agency is taking itself out of all phases of the federal action, not just

draft EIS preparation. This means that the agency has determined that it cannot be involved in

the later stages of EIS review and comment, as well as decisionmaking on the proposed action.

For this reason, cooperating agencies with jurisdiction by law (those which have permitting or

other approval authority) cannot opt out entirely of the duty to cooperate on the EIS. See also

Question 15, relating specifically to the responsibility of EPA.

14b. How are disputes resolved between lead and cooperating agencies concerning the

scope and level of detail of analysis and the quality of data in impact statements?

A. Such disputes are resolved by the agencies themselves. A lead agency, of course, has the

ultimate responsibility for the content of an EIS. But it is supposed to use the environmental

analysis and recommendations of cooperating agencies with jurisdiction by law or special

expertise to the maximum extent possible, consistent with its own responsibilities as lead

agency. Section 1501.6(a)(2).

If the lead agency leaves out a significant issue or ignores the advice and expertise of the

cooperating agency, the EIS may be found later to be inadequate. Similarly, where cooperating

agencies have their own decisions to make and they intend to adopt the environmental impact

statement and base their decisions on it, one document should include all of the information

necessary for the decisions by the cooperating agencies. Otherwise they may be forced to

duplicate the EIS process by issuing a new, more complete EIS or Supplemental EIS, even

though the original EIS could have sufficed if it had been properly done at the outset. Thus,

both lead and cooperating agencies have a stake in producing a document of good quality.

Cooperating agencies also have a duty to participate fully in the scoping process to ensure that

the appropriate range of issues is determined early in the EIS process.

Because the EIS is not the Record of Decision, but instead constitutes the information and

analysis on which to base a decision, disagreements about conclusions to be drawn from the

EIS need not inhibit agencies from issuing a joint document, or adopting another agency's EIS,

if the analysis is adequate. Thus, if each agency has its own "preferred alternative," both can be

identified in the EIS. Similarly, a cooperating agency with jurisdiction by law may determine in

its own ROD that alternative A is the environmentally preferable action, even though the lead

agency has decided in its separate ROD that Alternative B is environmentally preferable.

14c. What are the specific responsibilities of federal and state cooperating agencies to

review draft EISs?

A. Cooperating agencies (i.e., agencies with jurisdiction by law or special expertise) and

agencies that are authorized to develop or enforce environmental standards, must comment on

environmental impact statements within their jurisdiction, expertise or authority. Sections

1503.2, 1508.5. If a cooperating agency is satisfied that its views are adequately reflected in

the environmental impact statement, it should simply comment accordingly. Conversely, if the

cooperating agency determines that a draft EIS is incomplete, inadequate or inaccurate, or it

has other comments, it should promptly make such comments, conforming to the requirements

of specificity in section 1503.3.

14d. How is the lead agency to treat the comments of another agency with jurisdiction by law

or special expertise which has failed or refused to cooperate or participate in scoping or

EIS preparation?

A. A lead agency has the responsibility to respond to all substantive comments raising

significant issues regarding a draft EIS. Section 1503.4. However, cooperating agencies are

generally under an obligation to raise issues or otherwise participate in the EIS process

during scoping and EIS preparation if they reasonably can do so. In practical terms, if a

cooperating agency fails to cooperate at the outset, such as during scoping, it will find that its

comments at a later stage will not be as persuasive to the lead agency.

15. Commenting Responsibilities of EPA. Are EPA's responsibilities to review and

comment on the environmental effects of agency proposals under Section 309 of the Clean

Air Act independent of its responsibility as a cooperating agency?

A. Yes. EPA has an obligation under Section 309 of the Clean Air Act to review and comment

in writing on the environmental impact of any matter relating to the authority of the

Administrator contained in proposed legislation, federal construction projects, other federal

actions requiring EISs, and new regulations. 42 U.S.C. Sec. 7609. This obligation is

independent of its role as a cooperating agency under the NEPA regulations.

16. Third Party Contracts. What is meant by the term "third party contracts" in connection

with the preparation of an EIS? See Section 1506.5(c). When can "third party contracts" be

used?

A. As used by EPA and other agencies, the term "third party contract" refers to the preparation

of EISs by contractors paid by the applicant. In the case of an EIS for a National Pollution

Discharge Elimination System (NPDES) permit, the applicant, aware in the early planning

stages of the proposed project of the need for an EIS, contracts directly with a consulting firm

for its preparation. See 40 C.F.R. 6.604(g). The "third party" is EPA which, under Section

1506.5(c), must select the consulting firm, even though the applicant pays for the cost of

preparing the EIS. The consulting firm is responsible to EPA for preparing an EIS that meets

the requirements of the NEPA regulations and EPA's NEPA procedures. It is in the applicant's

interest that the EIS comply with the law so that EPA can take prompt action on the NPDES

permit application. The "third party contract" method under EPA's NEPA procedures is purely

voluntary, though most applicants have found it helpful in expediting compliance with NEPA.

If a federal agency uses "third party contracting," the applicant may undertake the necessary

paperwork for the solicitation of a field of candidates under the agency's direction, so long as

the agency complies with Section 1506.5(c). Federal procurement requirements do not apply to

the agency because it incurs no obligations or costs under the contract, nor does the agency

procure anything under the contract.

17a. Disclosure Statement to Avoid Conflict of Interest. If an EIS is prepared with the

assistance of a consulting firm, the firm must execute a disclosure statement. What criteria

must the firm follow in determining whether it has any "financial or other interest in the

outcome of the project" which would cause a conflict of interest?

A. Section 1506.5(c), which specifies that a consulting firm preparing an EIS must execute a

disclosure statement, does not define "financial or other interest in the outcome of the project."

The Council interprets this term broadly to cover any known benefits other than general

enhancement of professional reputation. This includes any financial benefit such as a promise

of future construction or design work on the project, as well as indirect benefits the consultant

is aware of (e.g., if the project would aid proposals sponsored by the firm's other clients). For

example, completion of a highway project may encourage construction of a shopping center or

industrial park from which the consultant stands to benefit. If a consulting firm is aware that it

has such an interest in the decision on the proposal, it should be disqualified from preparing

the EIS, to preserve the objectivity and integrity of the NEPA process.

When a consulting firm has been involved in developing initial data and plans for the project,

but does not have any financial or other interest in the outcome of the decision, it need not be

disqualified from preparing the EIS. However, a disclosure statement in the draft EIS should

clearly state the scope and extent of the firm's prior involvement to expose any potential

conflicts of interest that may exist.

17b. If the firm in fact has no promise of future work or other interest in the outcome of the

proposal, may the firm later bid in competition with others for future work on the project if

the proposed action is approved?

A. Yes.

18. Uncertainties About Indirect Effects of A Proposal. How should uncertainties about

indirect effects of a proposal be addressed, for example, in cases of disposal of federal lands,

when the identity or plans of future landowners is unknown?

A. The EIS must identify all the indirect effects that are known, and make a good faith effort to

explain the effects that are not known but are "reasonably foreseeable." Section 1508.8(b). In

the example, if there is total uncertainty about the identity of future land owners or the nature

of future land uses, then of course, the agency is not required to engage in speculation or

contemplation about their future plans. But, in the ordinary course of business, people do make

judgments based upon reasonably foreseeable occurrences. It will often be possible to consider

the likely purchasers and the development trends in that area or similar areas in recent years; or

the likelihood that the land will be used for an energy project, shopping center, subdivision,

farm or factory. The agency has the responsibility to make an informed judgment, and to

estimate future impacts on that basis, especially if trends are ascertainable or potential

purchasers have made themselves known. The agency cannot ignore these uncertain, but

probable, effects of its decisions.

19a. Mitigation Measures. What is the scope of mitigation measures that must be discussed?

A. The mitigation measures discussed in an EIS must cover the range of impacts of the

proposal. The measures must include such things as design alternatives that would decrease

pollution emissions, construction impacts, esthetic intrusion, as well as relocation assistance,

possible land use controls that could be enacted, and other possible efforts. Mitigation measures

must be considered even for impacts that by themselves would not be considered "significant."

Once the proposal itself is considered as a whole to have significant effects, all of its specific

effects on the environment (whether or not "significant") must be considered, and mitigation

measures must be developed where it is feasible to do so. Sections 1502.14(f), 1502.16(h),

1508.14.

19b. How should an EIS treat the subject of available mitigation measures that are (1) outside

the jurisdiction of the lead or cooperating agencies, or (2) unlikely to be adopted or enforced

by the responsible agency?

A. All relevant, reasonable mitigation measures that could improve the project are to be

identified, even if they are outside the jurisdiction of the lead agency or the cooperating

agencies, and thus would not be committed as part of the RODs of these agencies. Sections

1502.16(h), 1505.2(c). This will serve to [46 FR 18032] alert agencies or officials who can

implement these extra measures, and will encourage them to do so. Because the EIS is the

most comprehensive environmental document, it is an ideal vehicle in which to lay out not

only the full range of environmental impacts but also the full spectrum of appropriate

mitigation.

However, to ensure that environmental effects of a proposed action are fairly assessed, the

probability of the mitigation measures being implemented must also be discussed. Thus the

EIS and the Record of Decision should indicate the likelihood that such measures will be

adopted or enforced by the responsible agencies. Sections 1502.16(h), 1505.2. If there is a

history of nonenforcement or opposition to such measures, the EIS and Record of Decision

should acknowledge such opposition or nonenforcement. If the necessary mitigation

measures will not be ready for a long period of time, this fact, of course, should also be

recognized.

20. Worst Case Analysis. [Withdrawn.]

21. Combining Environmental and Planning Documents. Where an EIS or an EA is

combined with another project planning document (sometimes called "piggybacking"), to

what degree may the EIS or EA refer to and rely upon information in the project document to

satisfy NEPA's requirements?

A. Section 1502.25 of the regulations requires that draft EISs be prepared concurrently and

integrated with environmental analyses and related surveys and studies required by other

federal statutes. In addition, Section 1506.4 allows any environmental document prepared in

compliance with NEPA to be combined with any other agency document to reduce duplication

and paperwork. However, these provisions were not intended to authorize the preparation of a

short summary or outline EIS, attached to a detailed project report or land use plan containing

the required environmental impact data. In such circumstances, the reader would have to refer

constantly to the detailed report to understand the environmental impacts and alternatives

which should have been found in the EIS itself.

The EIS must stand on its own as an analytical document which fully informs

decisionmakers and the public of the environmental effects of the proposal and those of the

reasonable alternatives. Section 1502.1. But, as long as the EIS is clearly identified and is

self-supporting, it can be physically included in or attached to the project report or land use

plan, and may use attached report material as technical backup.

Forest Service environmental impact statements for forest management plans are handled in

this manner. The EIS identifies the agency's preferred alternative, which is developed in detail

as the proposed management plan. The detailed proposed plan accompanies the EIS through

the review process, and the documents are appropriately cross-referenced. The proposed plan

is useful for EIS readers as an example, to show how one choice of management options

translates into effects on natural resources. This procedure permits initiation of the 90-day

public review of proposed forest plans, which is required by the National Forest Management

Act.

All the alternatives are discussed in the EIS, which can be read as an independent document.

The details of the management plan are not repeated in the EIS, and vice versa. This is a

reasonable functional separation of the documents: the EIS contains information relevant to

the choice among alternatives; the plan is a detailed description of proposed management

activities suitable for use by the land managers. This procedure provides for concurrent

compliance with the public review requirements of both NEPA and the National Forest

Management Act.

Under some circumstances, a project report or management plan may be totally merged with

the EIS, and the one document labeled as both "EIS" and "management plan" or "project

report." This may be reasonable where the documents are short, or where the EIS format and

the regulations for clear, analytical EISs also satisfy the requirements for a project report.

22. State and Federal Agencies as Joint Lead Agencies. May state and federal agencies

serve as joint lead agencies? If so, how do they resolve law, policy and resource conflicts

under NEPA and the relevant state environmental policy act? How do they resolve

differences in perspective where, for example, national and local needs may differ?

A. Under Section 1501.5(b), federal, state or local agencies, as long as they include at least

one federal agency, may act as joint lead agencies to prepare an EIS. Section 1506.2 also

strongly urges state and local agencies and the relevant federal agencies to cooperate fully

with each other. This should cover joint research and studies, planning activities, public

hearings, environmental assessments and the preparation of joint EISs under NEPA and the

relevant "little NEPA" state laws, so that one document will satisfy both laws.

The regulations also recognize that certain inconsistencies may exist between the proposed

federal action and any approved state or local plan or law. The joint document should discuss

the extent to which the federal agency would reconcile its proposed action with such plan or

law. Section 1506.2(d). (See Question 23).

Because there may be differences in perspective as well as conflicts among [46 FR 18033]

federal, state and local goals for resources management, the Council has advised participating

agencies to adopt a flexible, cooperative approach. The joint EIS should reflect all of their

interests and missions, clearly identified as such. The final document would then indicate how

state and local interests have been accommodated, or would identify conflicts in goals (e.g., how

a hydroelectric project, which might induce second home development, would require new land

use controls). The EIS must contain a complete discussion of scope and purpose of the proposal,

alternatives, and impacts so that the discussion is adequate to meet the needs of local, state and

federal decisionmakers.

23a. Conflicts of Federal Proposal With Land Use Plans, Policies or Controls. How should

an agency handle potential conflicts between a proposal and the objectives of Federal, state or

local land use plans, policies and controls for the area concerned? See Sec.

1502.16(c).

A. The agency should first inquire of other agencies whether there are any potential conflicts. If

there would be immediate conflicts, or if conflicts could arise in the future when the plans are

finished (see Question 23(b) below), the EIS must acknowledge and describe the extent of

those conflicts. If there are any possibilities of resolving the conflicts, these should be

explained as well. The EIS should also evaluate the seriousness of the impact of the proposal

on the land use plans and policies, and whether, or how much, the proposal will impair the

effectiveness of land use control mechanisms for the area. Comments from officials of the

affected area should be solicited early and should be carefully acknowledged and answered in

the EIS.

23b. What constitutes a "land use plan or policy" for purposes of this discussion?

A. The term "land use plans," includes all types of formally adopted documents for land use

planning, zoning and related regulatory requirements. Local general plans are included, even

though they are subject to future change. Proposed plans should also be addressed if they have

been formally proposed by the appropriate government body in a written form, and are being

actively pursued by officials of the jurisdiction. Staged plans, which must go through phases

of development such as the Water Resources Council's Level A, B and C planning process

should also be included even though they are incomplete.

The term "policies" includes formally adopted statements of land use policy as embodied in

laws or regulations. It also includes proposals for action such as the initiation of a planning

process, or a formally adopted policy statement of the local, regional or state executive

branch, even if it has not yet been formally adopted by the local, regional or state legislative

body.

23c. What options are available for the decisionmaker when conflicts with such plans or

policies are identified?

A. After identifying any potential land use conflicts, the decisionmaker must weigh the

significance of the conflicts, among all the other environmental and non-environmental

factors that must be considered in reaching a rational and balanced decision. Unless

precluded by other law from causing or contributing to any inconsistency with the land

use plans, policies or controls, the decisionmaker retains the authority to go forward with

the proposal, despite the potential conflict. In the Record of Decision, the decisionmaker

must explain what the decision was, how it was made, and what mitigation measures are

being imposed to lessen adverse environmental impacts of the proposal, among the other

requirements of Section 1505.2. This provision would require the decisionmaker to

explain any decision to override land use plans, policies or controls for the area.

24a. Environmental Impact Statements on Policies, Plans or Programs. When are EISs

required on policies, plans or programs?

A. An EIS must be prepared if an agency proposes to implement a specific policy, to adopt a

plan for a group of related actions, or to implement a specific statutory program or executive

directive. Section 1508.18. In addition, the adoption of official policy in the form of rules,

regulations and interpretations pursuant to the Administrative Procedure Act, treaties,

conventions, or other formal documents establishing governmental or agency policy which

will substantially alter agency programs, could require an EIS. Section 1508.18. In all cases,

the policy, plan, or program must have the potential for significantly affecting the quality of

the human environment in order to require an EIS. It should be noted that a proposal "may

exist in fact as well as by agency declaration that one exists." Section 1508.23.

24b. When is an area-wide or overview EIS appropriate?

A. The preparation of an area-wide or overview EIS may be particularly useful when similar

actions, viewed with other reasonably foreseeable or proposed agency actions, share common

timing or geography. For example, when a variety of energy projects may be located in a single

watershed, or when a series of new energy technologies may be developed through federal

funding, the overview or area-wide EIS would serve as a valuable and necessary analysis of the

affected environment and the potential cumulative impacts of the reasonably foreseeable

actions under that program or within that geographical area.

24c. What is the function of tiering in such cases?

A. Tiering is a procedure which allows an agency to avoid duplication of paperwork through

the incorporation by reference of the general discussions and relevant specific discussions from

an environmental impact statement of broader scope into one of lesser scope or vice versa. In

the example given in Question 24b, this would mean that an overview EIS would be prepared

for all of the energy activities reasonably foreseeable in a particular geographic area or

resulting from a particular development program. This impact statement would be followed by

site-specific or project-specific EISs. The tiering process would make each EIS of greater use

and meaning to the public as the plan or program develops, without duplication of the analysis

prepared for the previous impact statement.

25a. Appendices and Incorporation by Reference. When is it appropriate to use appendices

instead of including information in the body of an EIS?

A. The body of the EIS should be a succinct statement of all the information on environmental

impacts and alternatives that the decisionmaker and the public need, in order to make the

decision and to ascertain that every significant factor has been examined. The EIS must

explain or summarize methodologies of research and modeling, and the results of research

that may have been conducted to analyze impacts and alternatives.

Lengthy technical discussions of modeling methodology, baseline studies, or other work are

best reserved for the appendix. In other words, if only technically trained individuals are likely

to understand a particular discussion then it should go in the appendix, and a plain language

summary of the analysis and conclusions of that technical discussion should go in the text of

the EIS.

The final statement must also contain the agency's responses to comments on the draft EIS.

These responses will be primarily in the form of changes in the document itself, but specific

answers to each significant comment should also be included. These specific responses may be

placed in an appendix. If the comments are especially voluminous, summaries of the

comments and responses will suffice. (See Question 29 regarding the level of detail required

for responses to comments.)

25b. How does an appendix differ from incorporation by reference?

A. First, if at all possible, the appendix accompanies the EIS, whereas the material which is

incorporated by reference does not accompany the EIS. Thus the appendix should contain

information that reviewers will be likely to want to examine. The appendix should include

material that pertains to preparation of a particular EIS. Research papers directly relevant to

the proposal, lists of affected species, discussion of the methodology of models used in the

analysis of impacts, extremely detailed responses to comments, or other information, would

be placed in the appendix.

The appendix must be complete and available at the time the EIS is filed. Five copies of the

appendix must be sent to EPA with five copies of the EIS for filing. If the appendix is too

bulky to be circulated, it instead must be placed in conveniently accessible locations or

furnished directly to commentors upon request. If it is not circulated with the EIS, the Notice of

Availability published by EPA must so state, giving a telephone number to enable potential

commentors to locate or request copies of the appendix promptly.

Material that is not directly related to preparation of the EIS should be incorporated by

reference. This would include other EISs, research papers in the general literature, technical

background papers or other material that someone with technical training could use to

evaluate the analysis of the proposal. These must be made available, either by citing the

literature, furnishing copies to central locations, or sending copies directly to commenters

upon request.

Care must be taken in all cases to ensure that material incorporated by reference, and the

occasional appendix that does not accompany the EIS, are in fact available for the full minimum

public comment period.

26a. Index and Keyword Index in EISs. How detailed must an EIS index be?

A. The EIS index should have a level of detail sufficient to focus on areas of the EIS of

reasonable interest to any reader. It cannot be restricted to the most important topics. On the

other hand, it need not identify every conceivable term or phrase in the EIS. If an agency

believes that the reader is reasonably likely to be interested in a topic, it should be included.

26b. Is a keyword index required?

A. No. A keyword index is a relatively short list of descriptive terms that identifies the key

concepts or subject areas in a document. For example it could consist of 20 terms which

describe the most significant aspects of an EIS that a future researcher would need: type of

proposal, type of impacts, type of environment, geographical area, sampling or modeling

methodologies used. This technique permits the compilation of EIS data banks, by

facilitating quick and inexpensive access to stored materials. While a keyword index is not

required by the regulations, it could be a useful addition for several reasons. First, it can be

useful as a quick index for reviewers of the EIS, helping to focus on areas of interest.

Second, if an agency keeps a listing of the keyword indexes of the EISs it produces, the EIS

preparers themselves will have quick access to similar research data and methodologies to

aid their future EIS work. Third, a keyword index will be needed to make an EIS available to

future researchers using EIS data banks that are being developed. Preparation of such an

index now when the document is produced will save a later effort when the data banks

become operational.

27a. List of Preparers. If a consultant is used in preparing an EIS, must the list of preparers

identify members of the consulting firm as well as the agency NEPA staff who were primarily

responsible?

A. Section 1502.17 requires identification of the names and qualifications of persons who were

primarily responsible for preparing the EIS or significant background papers, including basic

components of the statement. This means that members of a consulting firm preparing material

that is to become part of the EIS must be identified. The EIS should identify these individuals

even though the consultant's contribution may have been modified by the agency.

27b. Should agency staff involved in reviewing and editing the EIS also be included in the list

of preparers?

A. Agency personnel who wrote basic components of the EIS or significant background

papers must, of course, be identified. The EIS should also list the technical editors who

reviewed or edited the statements.

27c. How much information should be included on each person listed?

A. The list of preparers should normally not exceed two pages. Therefore, agencies must

determine which individuals had primary responsibility and need not identify individuals

with minor involvement. The list of preparers should include a very brief identification of

the individuals involved, their qualifications (expertise, professional disciplines) and the

specific portion of the EIS for which they are responsible. This may be done in tabular

form to cut down on length. A line or two for each person's qualifications should be

sufficient.

28. Advance or Xerox Copies of EIS. May an agency file xerox copies of an EIS with EPA

pending the completion of printing the document?

A. Xerox copies of an EIS may be filed with EPA prior to printing only if the xerox copies are

simultaneously made available to other agencies and the public. Section 1506.9 of the

regulations, which governs EIS filing, specifically requires Federal agencies to file EISs with

EPA no earlier than the EIS is distributed to the public. However, this section does not prohibit

xeroxing as a form of reproduction and distribution. When an agency chooses xeroxing as the

reproduction method, the EIS must be clear and legible to permit ease of reading and ultimate

microfiching of the EIS. Where color graphs are important to the EIS, they should be

reproduced and circulated with the xeroxed copy.

29a. Responses to Comments. What response must an agency provide to a comment on a

draft EIS which states that the EIS's methodology is inadequate or inadequately explained? For

example, what level of detail must an agency include in its response to a simple postcard

comment making such an allegation?

A. Appropriate responses to comments are described in Section 1503.4. Normally the

responses should result in changes in the text of the EIS, not simply a separate answer at the

back of the document. But, in addition, the agency must state what its response was, and if the

agency decides that no substantive response to a comment is necessary, it must explain briefly

why.

An agency is not under an obligation to issue a lengthy reiteration of its methodology for any

portion of an EIS if the only comment addressing the methodology is a simple complaint that

the EIS methodology is inadequate. But agencies must respond to comments, however brief,

which are specific in their criticism of agency methodology. For example, if a commentor on

an EIS said that an agency's air quality dispersion analysis or methodology was inadequate, and

the agency had included a discussion of that analysis in the EIS, little if anything need be added

in response to such a comment. However, if the commenter said that the dispersion analysis

was inadequate because of its use of a certain computational technique, or that a dispersion

analysis was inadequately explained because computational techniques were not included or

referenced, then the agency would have to respond in a substantive and meaningful way to such

a comment. If a number of comments are identical or very similar, agencies may group the

comments and prepare a single answer for each group. Comments may be summarized if they

are especially voluminous. The comments or summaries must be attached to the EIS regardless

of whether the agency believes they merit individual discussion in the body of the final EIS.

29b. How must an agency respond to a comment on a draft EIS that raises a new alternative

not previously considered in the draft EIS?

A. This question might arise in several possible situations. First, a commenter on a draft EIS

may indicate that there is a possible alternative which, in the agency's view, is not a reasonable

alternative. Section 1502.14(a). If that is the case, the agency must explain why the comment

does not warrant further agency response, citing authorities or reasons that support the

agency's position and, if appropriate, indicate those circumstances which would trigger agency

reappraisal or further response. Section 1503.4(a). For example, a commentor on a draft EIS on

a coal fired power plant may suggest the alternative of using synthetic fuel. The agency may

reject the alternative with a brief discussion (with authorities) of the unavailability of synthetic

fuel within the time frame necessary to meet the need and purpose of the proposed facility.

A second possibility is that an agency may receive a comment indicating that a particular

alternative, while reasonable, should be modified somewhat, for example, to achieve certain

mitigation benefits, or for other reasons. If the modification is reasonable, the agency should

include a discussion of it in the final EIS. For example, a commenter on a draft EIS on a

proposal for a pumped storage power facility might suggest that the applicant's proposed

alternative should be enhanced by the addition of certain reasonable mitigation measures,

including the purchase and setaside of a wildlife preserve to substitute for the tract to be

destroyed by the project. The modified alternative including the additional mitigation

measures should be discussed by the agency in the final EIS.

A third slightly different possibility is that a comment on a draft EIS will raise an alternative

which is a minor variation of one of the alternatives discussed in the draft EIS, but this

variation was not given any consideration by the agency. In such a case, the agency should

develop and evaluate the new alternative, if it is reasonable, in the final EIS. If it is

qualitatively within the spectrum of alternatives that were discussed in the draft, a

supplemental draft will not be needed. For example, a commenter on a draft EIS to designate a

wilderness area within a National Forest might reasonably identify a specific tract of the forest,

and urge that it be considered for designation. If the draft EIS considered designation of a

range of alternative tracts which encompassed forest area of similar quality and quantity, no

supplemental EIS would have to be prepared. The agency could fulfill its obligation by

addressing that specific alternative in the final EIS.

As another example, an EIS on an urban housing project may analyze the alternatives of

constructing 2,000, 4,000, or 6,000 units. A commentor on the draft EIS might urge the

consideration of constructing 5,000 units utilizing a different configuration of buildings. This

alternative is within the spectrum of alternatives already considered, and, therefore, could be

addressed in the final EIS.

A fourth possibility is that a commenter points out an alternative which is not a variation of the

proposal or of any alternative discussed in the draft impact statement, and is a reasonable

alternative that warrants serious agency response. In such a case, the agency must issue a

supplement to the draft EIS that discusses this new alternative. For example, a commenter on a

draft EIS on a nuclear power plant might suggest that a reasonable alternative for meeting the

projected need for power would be through peak load management and energy conservation

programs. If the permitting agency has failed to consider that approach in the Draft EIS, and the

approach cannot be dismissed by the agency as unreasonable, a supplement to the Draft EIS,

which discusses that alternative, must be prepared. (If necessary, the same supplement should

also discuss substantial changes in the proposed action or significant new circumstances or

information, as required by Section 1502.9(c)(1) of the Council's regulations.)

If the new alternative was not raised by the commentor during scoping, but could have been,

commenters may find that they are unpersuasive in their efforts to have their suggested

alternative analyzed in detail by the agency. However, if the new alternative is discovered or

developed later, and it could not reasonably have been raised during the scoping process, then

the agency must address it in a supplemental draft EIS. The agency is, in any case, ultimately

responsible for preparing an adequate EIS that considers all alternatives.

30. Adoption of EISs. When a cooperating agency with jurisdiction by law intends to adopt a

lead agency's EIS and it is not satisfied with the adequacy of the document, may the

cooperating agency adopt only the part of the EIS with which it is satisfied? If so, would a

cooperating agency with jurisdiction by law have to prepare a separate EIS or EIS supplement

covering the areas of disagreement with the lead agency?

A. Generally, a cooperating agency may adopt a lead agency's EIS without recirculating it if it

concludes that its NEPA requirements and its comments and suggestions have been satisfied.

Section 1506.3(a), (c). If necessary, a cooperating agency may adopt only a portion of the lead

agency's EIS and may reject that part of the EIS with which it disagrees, stating publicly why it

did so. Section 1506.3(a).

A cooperating agency with jurisidiction by law (e.g., an agency with independent legal

responsibilities with respect to the proposal) has an independent legal obligation to comply

with NEPA. Therefore, if the cooperating agency determines that the EIS is wrong or

inadequate, it must prepare a supplement to the EIS, replacing or adding any needed

information, and must circulate the supplement as a draft for public and agency review and

comment. A final supplemental EIS would be required before the agency could take action.

The adopted portions of the lead agency EIS should be circulated with the supplement.

Section 1506.3(b). A cooperating agency with jurisdiction by law will have to prepare its own

Record of Decision for its action, in which it must explain how it reached its conclusions.

Each agency should explain how and why its conclusions differ, if that is the case, from those

of other agencies which issued their Records of Decision earlier. An agency that did not

cooperate in preparation of an EIS may also adopt an EIS or portion thereof. But this would

arise only in rare instances, because an agency adopting an EIS for use in its own decision

normally would have been a cooperating agency. If the proposed action for which the EIS

was prepared is substantially the same as the proposed action of the adopting agency, the EIS

may be adopted as long as it is recirculated as a final EIS and the agency announces what it is

doing. This would be followed by the 30-day review period and issuance of a Record of

Decision by the adopting agency. If the proposed action by the adopting agency is not

substantially the same as that in [46 FR 18036] the EIS (i.e., if an EIS on one action is being

adapted for use in a decision on another action), the EIS would be treated as a draft and

circulated for the normal public comment period and other procedures. Section 1506.3(b).

31a. Application of Regulations to Independent Regulatory Agencies. Do the Council's

NEPA regulations apply to independent regulatory agencies like the Federal Energy

Regulatory Commission (FERC) and the Nuclear Regulatory Commission?

A. The statutory requirements of NEPA's Section 102 apply to "all agencies of the federal

government." The NEPA regulations implement the procedural provisions of NEPA as set

forth in NEPA's Section 102(2) for all agencies of the federal government. The NEPA

regulations apply to independent regulatory agencies, however, they do not direct independent

regulatory agencies or other agencies to make decisions in any particular way or in a way

inconsistent with an agency's statutory charter. Sections 1500.3, 1500.6, 1507.1, and 1507.3.

31b. Can an Executive Branch agency like the Department of the Interior adopt an EIS

prepared by an independent regulatory agency such as FERC?

A. If an independent regulatory agency such as FERC has prepared an EIS in connection

with its approval of a proposed project, an Executive Branch agency (e.g., the Bureau of

Land Management in the Department of the Interior) may, in accordance with Section

1506.3, adopt the EIS or a portion thereof for its use in considering the same proposal. In

such a case the EIS must, to the satisfaction of the adopting agency, meet the standards for

an adequate statement under the NEPA regulations (including scope and quality of

analysis of alternatives) and must satisfy the adopting agency's comments and suggestions.

If the independent regulatory agency fails to comply with the NEPA regulations, the

cooperating or adopting agency may find that it is unable to adopt the EIS, thus forcing the

preparation of a new EIS or EIS Supplement for the same action. The NEPA regulations

were made applicable to all federal agencies in order to avoid this result, and to achieve

uniform application and efficiency of the NEPA process.

32. Supplements to Old EISs. Under what circumstances do old EISs have to be

supplemented before taking action on a proposal?

A. As a rule of thumb, if the proposal has not yet been implemented, or if the EIS concerns an

ongoing program, EISs that are more than 5 years old should be carefully reexamined to

determine if the criteria in Section 1502.9 compel preparation of an EIS supplement.

If an agency has made a substantial change in a proposed action that is relevant to

environmental concerns, or if there are significant new circumstances or information relevant

to environmental concerns and bearing on the proposed action or its impacts, a supplemental

EIS must be prepared for an old EIS so that the agency has the best possible information to

make any necessary substantive changes in its decisions regarding the proposal. Section

1502.9(c).

33a. Referrals. When must a referral of an interagency disagreement be made to the Council?

A. The Council's referral procedure is a pre-decision referral process for interagency

disagreements. Hence, Section 1504.3 requires that a referring agency must deliver its referral

to the Council not later than 25 days after publication by EPA of notice that the final EIS is

available (unless the lead agency grants an extension of time under Section 1504.3(b)).

33b. May a referral be made after this issuance of a Record of Decision?

A. No, except for cases where agencies provide an internal appeal procedure which permits

simultaneous filing of the final EIS and the record of decision (ROD). Section 1506.10(b)(2).

Otherwise, as stated above, the process is a pre-decision referral process. Referrals must be

made within 25 days after the notice of availability of the final EIS, whereas the final decision

(ROD) may not be made or filed until after 30 days from the notice of availability of the EIS.

Sections 1504.3(b), 1506.10(b). If a lead agency has granted an extension of time for another

agency to take action on a referral, the ROD may not be issued until the extension has expired.

34a. Records of Decision. Must Records of Decision (RODs) be made public? How should

they be made available?

A. Under the regulations, agencies must prepare a "concise public record of decision," which

contains the elements specified in Section 1505.2. This public record may be integrated into

any other decision record prepared by the agency, or it may be separate if decision documents

are not normally made public. The Record of Decision is intended by the Council to be an

environmental document (even though it is not explicitly mentioned in the definition of

"environmental document" in Section 1508.10). Therefore, it must be made available to the

public through appropriate public notice as required by Section 1506.6(b). However, there is

no specific requirement for publication of the ROD itself, either in the Federal Register or

elsewhere.

34b. May the summary section in the final Environmental Impact Statement substitute for or

constitute an agency's Record of Decision?

A. No. An environmental impact statement is supposed to inform the decisionmaker before the

decision is made. Sections 1502.1, 1505.2. The Council's regulations provide for a 30-day

period after notice is published that the final EIS has been filed with EPA before the agency

may take final action. During that period, in addition to the agency's own internal final review,

the public and other agencies can comment on the final EIS prior to the agency's final action on

the proposal. In addition, the Council's regulations make clear that the requirements for the

summary in an EIS are not the same as the requirements for a ROD. Sections 1502.12 and

1505.2.

34c. What provisions should Records of Decision contain pertaining to mitigation and

monitoring?

A. Lead agencies "shall include appropriate conditions [including mitigation measures and

monitoring and enforcement programs] in grants, permits or other approvals" and shall

"condition funding of actions on mitigation." Section 1505.3. Any such measures that are

adopted must be explained and committed in the ROD.

The reasonable alternative mitigation measures and monitoring programs should have been

addressed in the draft and final EIS. The discussion of mitigation and monitoring in a Record

of Decision must be more detailed than a general statement that mitigation is being required,

but not so detailed as to duplicate discussion of mitigation in the EIS. The Record of Decision

should contain a concise summary identification of the mitigation measures which the agency

has committed itself to adopt.

The Record of Decision must also state whether all practicable mitigation measures have

been adopted, and if not, why not. Section 1505.2(c). The Record of Decision must identify

the mitigation measures and monitoring and enforcement programs that have been selected

and plainly indicate that they are adopted as part of the agency's decision. If the proposed

action is the issuance of a permit or other approval, the specific details of the mitigation

measures shall then be included as appropriate conditions in whatever grants, permits,

funding or other approvals are being made by the federal agency. Section 1505.3 (a), (b). If

the proposal is to be carried out by the [46 FR 18037] federal agency itself, the Record of

Decision should delineate the mitigation and monitoring measures in sufficient detail to

constitute an enforceable commitment, or incorporate by reference the portions of the EIS

that do so.

34d. What is the enforceability of a Record of Decision?

A. Pursuant to generally recognized principles of federal administrative law, agencies will be

held accountable for preparing Records of Decision that conform to the decisions actually

made and for carrying out the actions set forth in the Records of Decision. This is based on the

principle that an agency must comply with its own decisions and regulations once they are

adopted. Thus, the terms of a Record of Decision are enforceable by agencies and private

parties. A Record of Decision can be used to compel compliance with or execution of the

mitigation measures identified therein.

35. Time Required for the NEPA Process. How long should the NEPA process take to

complete?

A. When an EIS is required, the process obviously will take longer than when an EA is the

only document prepared. But the Council's NEPA regulations encourage streamlined review,

adoption of deadlines, elimination of duplicative work, eliciting suggested alternatives and

other comments early through scoping, cooperation among agencies, and consultation with

applicants during project planning. The Council has advised agencies that under the new

NEPA regulations even large complex energy projects would require only about 12 months for

the completion of the entire EIS process. For most major actions, this period is well within the

planning time that is needed in any event, apart from NEPA.

The time required for the preparation of program EISs may be greater. The Council also

recognizes that some projects will entail difficult long-term planning and/or the acquisition of

certain data which of necessity will require more time for the preparation of the EIS. Indeed,

some proposals should be given more time for the thoughtful preparation of an EIS and

development of a decision which fulfills NEPA's substantive goals.

For cases in which only an environmental assessment will be prepared, the NEPA process

should take no more than 3 months, and in many cases substantially less, as part of the

normal analysis and approval process for the action.

36a. Environmental Assessments (EA). How long and detailed must an environmental

assessment (EA) be?

A. The environmental assessment is a concise public document which has three defined

functions. (1) It briefly provides sufficient evidence and analysis for determining whether to

prepare an EIS; (2) it aids an agency's compliance with NEPA when no EIS is necessary, i.e., it

helps to identify better alternatives and mitigation measures; and (3) it facilitates preparation of

an EIS when one is necessary. Section 1508.9(a).

Since the EA is a concise document, it should not contain long descriptions or detailed data

which the agency may have gathered. Rather, it should contain a brief discussion of the need

for the proposal, alternatives to the proposal, the environmental impacts of the proposed action

and alternatives, and a list of agencies and persons consulted. Section 1508.9(b).

While the regulations do not contain page limits for EA's, the Council has generally advised

agencies to keep the length of EAs to not more than approximately 10-15 pages. Some agencies

expressly provide page guidelines (e.g., 10-15 pages in the case of the Army Corps). To avoid

undue length, the EA may incorporate by reference background data to support its concise

discussion of the proposal and relevant issues.

36b. Under what circumstances is a lengthy EA appropriate?

A. Agencies should avoid preparing lengthy EAs except in unusual cases, where a proposal is

so complex that a concise document cannot meet the goals of Section 1508.9 and where it is

extremely difficult to determine whether the proposal could have significant environmental

effects. In most cases, however, a lengthy EA indicates that an EIS is needed.

37a. Findings of No Significant Impact (FONSI). What is the level of detail of information

that must be included in a finding of no significant impact (FONSI)?

A. The FONSI is a document in which the agency briefly explains the reasons why an action

will not have a significant effect on the human environment and, therefore, why an EIS will

not be prepared. Section 1508.13. The finding itself need not be detailed, but must succinctly

state the reasons for deciding that the action will have no significant environmental effects,

and, if relevant, must show which factors were weighted most heavily in the determination. In

addition to this statement, the FONSI must include, summarize, or attach and incorporate by

reference, the environmental assessment.

37b. What are the criteria for deciding whether a FONSI should be made available for public

review for 30 days before the agency's final determination whether to prepare an EIS?

A. Public review is necessary, for example, (a) if the proposal is a borderline case, i.e., when

there is a reasonable argument for preparation of an EIS; (b) if it is an unusual case, a new kind

of action, or a precedent setting case such as a first intrusion of even a minor development into

a pristine area; (c) when there is either scientific or public controversy over the proposal; or (d)

when it involves a proposal which is or is closely similar to one which normally requires

preparation of an EIS. Sections 1501.4(e)(2), 1508.27. Agencies also must allow a period of

public review of the FONSI if the proposed action would be located in a floodplain or wetland.

E.O. 11988, Sec. 2(a)(4); E.O. 11990, Sec. 2(b).

38. Public Availability of EAs v. FONSIs. Must (EAs) and FONSIs be made public? If so,

how should this be done?

A. Yes, they must be available to the public. Section 1506.6 requires agencies to involve the

public in implementing their NEPA procedures, and this includes public involvement in the

preparation of EAs and FONSIs. These are public "environmental documents" under Section

1506.6(b), and, therefore, agencies must give public notice of their availability. A combination

of methods may be used to give notice, and the methods should be tailored to the needs of

particular cases. Thus, a Federal Register notice of availability of the documents, coupled with

notices in national publications and mailed to interested national groups might be appropriate

for proposals that are national in scope. Local newspaper notices may be more appropriate for

regional or site-specific proposals.

The objective, however, is to notify all interested or affected parties. If this is not being

achieved, then the methods should be reevaluated and changed. Repeated failure to reach the

interested or affected public would be interpreted as a violation of the regulations.

39. Mitigation Measures Imposed in EAs and FONSIs. Can an EA and FONSI be used to

impose enforceable mitigation measures, monitoring programs, or other requirements, even

though there is no requirement in the regulations in such cases for a formal Record of

Decision?

A. Yes. In cases where an environmental assessment is the appropriate environmental

document, there still may be mitigation measures or alternatives that would be desirable to

consider and adopt even though the impacts of the proposal will not be "significant." In such

cases, the EA should include a discussion of these measures or alternatives to "assist [46 FR

18038] agency planning and decisionmaking" and to "aid an agency's compliance with

[NEPA] when no environmental impact statement is necessary." Section 1501.3(b),

1508.9(a)(2). The appropriate mitigation measures can be imposed as enforceable permit

conditions, or adopted as part of the agency final decision in the same manner mitigation

measures are adopted in the formal Record of Decision that is required in EIS cases.

40. Propriety of Issuing EA When Mitigation Reduces Impacts. If an environmental

assessment indicates that the environmental effects of a proposal are significant but that, with

mitigation, those effects may be reduced to less than significant levels, may the agency make a

finding of no significant impact rather than prepare an EIS? Is that a legitimate function of an

EA and scoping?

[N.B.: Courts have disagreed with CEQ's position in Question 40. The 1987-88 CEQ Annual

Report stated that CEQ intended to issue additional guidance on this topic. Ed. note.]

A. Mitigation measures may be relied upon to make a finding of no significant impact only if

they are imposed by statute or regulation, or submitted by an applicant or agency as part of the

original proposal. As a general rule, the regulations contemplate that agencies should use a

broad approach in defining significance and should not rely on the possibility of mitigation as

an excuse to avoid the EIS requirement. Sections 1508.8, 1508.27.

If a proposal appears to have adverse effects which would be significant, and certain

mitigation measures are then developed during the scoping or EA stages, the existence of such

possible mitigation does not obviate the need for an EIS. Therefore, if scoping or the EA

identifies certain mitigation possibilities without altering the nature of the overall proposal

itself, the agency should continue the EIS process and submit the proposal, and the potential

mitigation, for public and agency review and comment. This is essential to ensure that the

final decision is based on all the relevant factors and that the full NEPA process will result in

enforceable mitigation measures through the Record of Decision.

In some instances, where the proposal itself so integrates mitigation from the beginning that it

is impossible to define the proposal without including the mitigation, the agency may then rely

on the mitigation measures in determining that the overall effects would not be significant

(e.g., where an application for a permit for a small hydro dam is based on a binding

commitment to build fish ladders, to permit adequate down stream flow, and to replace any

lost wetlands, wildlife habitat and recreational potential). In those instances, agencies should

make the FONSI and EA available for 30 days of public comment before taking action.

Section 1501.4(e)(2).

Similarly, scoping may result in a redefinition of the entire project, as a result of mitigation

proposals. In that case, the agency may alter its previous decision to do an EIS, as long as the

agency or applicant resubmits the entire proposal and the EA and FONSI are available for 30

days of review and comment. One example of this would be where the size and location of a

proposed industrial park are changed to avoid affecting a nearby wetland area.

ENDNOTES

The first endnote appeared in the original Federal Register. The other endnotes are for

information only.

1. References throughout the document are to the Council on Environmental Quality's

Regulations For Implementing The Procedural Provisions of the National

Environmental Policy Act. 40 CFR Parts 1500-1508.

2. [46 FR 18027] indicates that the subsequent text may be cited to 48 Fed. Reg. 18027

(1981). Ed Note.

3. Q20 Worst Case Analysis was withdrawn by final rule issued at 51 Fed. Reg. 15618

(Apr. 25. 1986); textual errors corrected 51 F.R. p. 16,846 (May 7, 1986). The

preamble to this rule is published at ELR Admin. Mat. 35055.